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ReyazaddIn Vs. Ashraf Ali Pal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.606
AppellantReyazaddin
RespondentAshraf Ali Pal and ors.
Cases ReferredMohesh Chandra Banerji v. Prosanna Lal Singh
Excerpt:
instalment mortgage-bond - default of any two consecutive instalments--limitation--limitation act (ix of 1908), schedule i, articles 75 and 132 waiver, whether acceptance of part of overdue instalment is. - .....of the instalments due in 1305 and 1306 and that the full instalment for those years was never paid. on appeal the learned district judge held with reference to the endorsement of payment on the bond that the instalments due up to 1307 had been fully paid. but the endorsement on the bond does not show that all the instalments for 1305 had been paid up. there was thus not a payment of the instalments up to 1306 in full in 1307, and the acceptance of a part of overdue instalments does not constitute waiver see the case of mohesh chandra banerji v. prosanna lal singh 31 c 83 : 8 c.w.n. 66. that being so all the instalments became due more than twelve years before suit, so that even if the principle indicated in the third column of article 75 should be adopted in determining 'when the.....
Judgment:

N.R. Chatterjea, J.

1. This appeal arises out of a suit based on an instalment mortgage-bond. There was a stipulation in the bond that on default of two consecutive instalments the whole of the instalments would become due. The Court of the first instance found that the plaintiff accepted part of the instalments due in 1305 and 1306 and that the full instalment for those years was never paid. On appeal the learned District Judge held with reference to the endorsement of payment on the bond that the instalments due up to 1307 had been fully paid. But the endorsement on the bond does not show that all the instalments for 1305 had been paid up. There was thus not a payment of the instalments up to 1306 in full in 1307, and the acceptance of a part of overdue instalments does not constitute waiver see the case of Mohesh Chandra Banerji v. Prosanna Lal Singh 31 C 83 : 8 C.W.N. 66. That being so all the instalments became due more than twelve years before suit, so that even if the principle indicated in the third column of Article 75 should be adopted in determining 'when the money sued for becomes due' within the meaning of Article 132, as to which we do not express any opinion, the claim is barred by limitation.

2. The result is that this appeal is decreed and the suit dismissed with costs in all the Courts.

Richardson, J.

3. I agree. We must not be taken to have expressed any opinion whether the question of waiver which arises under Article 75 is relevant in a case falling under Article 132 of the Schedule to Limitation Act.


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